What are patents for? How long do they last? And what's a patent troll? We give a quick overview about patents and why they're such a big deal in tech.
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Welcome to tech Stuff, a production from I Heart Radio. Hey there, and welcome to tech Stuff. I'm your host, Jonathan Strickland. I'm an executive producer with I Heart Radio. And how the tech are you? It's time for a text of tidbit, those shows that at least in my mind, are going to be a little shorter and really focused on a specific topic related to tech. And earlier this week I talked a little bit about patents and their purpose. Namely, a patent is a government backed grant that covers an invention, and it gives the inventor or you know, whomever's name happens to be on the patent application, the exclusive right to exploit that invention. So the inventor can produce the invention themselves if they have the means to do so. They could build it, manufacture it, you know, sell it to people. They would have exclusive rights to do that, or they could license the design to others. So let's say you're an inventor, but you don't happen to have, you know, a manufacturing facility at your disposal. You can make a deal with a company that will manufacture your design. They'll pay you a license fee and you know, maybe there will be some other's parts of the agreement there and then in return they'll have the right to produce whatever is based off your invention, or you could even you know, just sit on your invention and wait more on that in a little bit. But that exclusivity is key here. Should you, as patent holder, discover that someone else is making use of your patented technology without your consent, you know you haven't signed a licensing deal or given permission, well you would have the right to pursue legal action against that other person or a company or entity. The flip side of this is that patents tend to be public information, like publicly accessible, so if you want to, you can browse through patent applications and read up on various inventions covering pretty much everything you can think of. It's all laid out there. Uh, it's it's a description of the invention and supposed to describe not just how the invention works, but you know what it's supposed to do and what effect it's supposed to have, often in language that is a little inscrutable. I think perhaps as part of a strategy to protect the inventions somewhat, and it can be a little vague, like you don't typically see patents that go into such detail that just by reading the patent you could easily duplicate whatever was invented. And also, patent protection has a time limit to it. They expire. Here in the United States, a patent now lasts twenty years from the earliest filing date of the patent. That's filing date, not the date upon which the patent was granted. Sometimes it can take years before a patent goes from being filed to being granted, so the expiration will go back to whenever the inventor first filed for the patent in the first place. So after twenty years of filing, the patent protection on the invention expires, and then anyone can make free use of that invented technology or process in whatever way they like. They don't have to pay licensing vs. They don't have to fear reprisal from the patent holder because now it's it's public domain. Of course, you know, in two decades after the filing, there's a pretty good chance that the state of the art in whatever we happen to be talking about has advanced to a point that the old patented invention is less applicable, might even be obsolete depending upon the technology in question. But you know, not all tech involved superfast computers or pupi lasers. It could be something so fundamental and simple that all technology following it is built up upon it and incorporates it in some way. It might not be like an end product. It might just be a part of larger things. Now, let's contrast that, you know, the whole patent idea with just keeping your invention a secret from others. You keep it secret, keep it safe, with the hope that you can perpetually maintain control over your invention and have exclusive use of it because no one knows how it works. You never share that information, you never filed for a patent. However, if someone else figures out how you're doing what you're doing, you know they're able to reverse engineer your invention in some way, then you don't have that patent protection to fall back on, and you are, in technical terms, up the creek as far as that exclusivity goes. I mean, obviously there are different circumstances, like if you can prove someone was uh using industrial espionage to steal trade secret, it's that's a big no note. But if someone independently figures out how you're doing stuff and you never bothered to patent your inventions, then you really you're you're lacking a major component of protection on your ideas. Now, patents get way more complicated than what I just describe. That's a very high level overview of what patents are and what they're for. Different nations have their own rules for patents, including when patents expire and what can and cannot be patented. Like typically, patent offices require a submission to be something that you can produce or that can be used. Uh, there are some really interesting cases with patents that seem to go outside of this. I mean, there are software patents, and that becomes a whole thing because it starts to enter into an argument of when do you get to a point where you're talking just about math, Because you can't patent math, right, you can't generally patent anything natural. Now, if you're able to engineer something out of natural products and you create something new, you can potentially patent that. In some places, genetically modified organisms are something that you can patent. But but if we're looking at it from big picture, whatever you're patenting it should be new. That means you can't submit something that already exists out there. If I went out and tried to patent uh, you know, a a car jack, just a regular car jack, that the basic kind that you can find anywhere, well, that would just fall flat in its face. That invention has been around for ages. I can't patent that. Also, whatever you patent should be inventive. It shouldn't just be a modification of existing technology. So you know, you couldn't go out with an AMP and patent it because this one goes to eleven. That doesn't mean anything. So and it also can't just be an idea. You can't patent just an idea. And theoretically it should be something that actually works, although proof that it works is not always required or even frequently required. However, in the United States, an examiner as in someone who is examining the patent application and determining whether or not the US government should grant a patent to the applicant. An examiner can contact that applicant if there is a question about operability. The applicant can then demonstrate the operability of their invention in any so way they choose to prove that in fact, it works. However, there is one big exception to this. If someone should submit a patent for a perpetual motion machine, that is, a machine that, once you set it into motion, will continue to be in motion, in defiance of the laws of the universe, well, then the applicant has to produce a working model of the device before the patent office will even go any further. There are no exceptions to that rule. And that's because for a while there was a kind of this craze where people were convinced that they had come up with a perpetual motion machine or a free energy machine, a machine that, once you put in the energy to start it going, produces more energy than it consumes. That's also in defiance of the laws of the universe as we understand them. And Uh, if you ever see claims that say that, you should certainly be skeptical. Uh. I've talked about those extensively on this show before. And I'm sure there's no shortage of patents that have gone through the process for inventions that actually don't work, or maybe they quote unquote work, as in, they operate, but they don't do what is intended. I'm reminded of numerous kinds of of like exercise equipment for example, where you could argue, well, it works in the sense that all the parts moved together, and like the motor makes things move or whatever, but it might not work in the sense that it actually helps you get into shape. Right, So there are different different points of view on what work means here. Uh. It would also be far too labor intensive to demand each and every patent applied for has to pass some sort of operability test. When we start talking about the numbers of patents, you'll see it's just it would be unreasonable to expect any government agency to go through and make that sort of demand. But generally speaking, if you're applying for a patent, that patent should be for some sort of invention that actually works. I mentioned that the invention shouldn't just be a modification of existing technology. That is true, it shouldn't just be a minor modification. However, it can be a significant evolution of technology, and that can be patentable. You'll often see patents that reference earlier patents, and in some cases it's to explain how the new invention is a significant improvement over an older one, and in other cases it's just to differentiate the two, to say, Okay, I'm filing this patent. I'm aware of this earlier patent that's for something similar. However, my invention is different enough to justify its own patent. At least that's the argument you're making. Patents in the United States date back to the late eighteenth century, but the concept is much much older. According to the Encyclopedia Britannica, the oldest patent on record dates to fourteen twenty one. The applicant was an engineer named Filippo Bruno Leski, and the invention was for a barge that included a hoist mechanism for the purposes of lifting and transporting marble. And this was in Florence, Italy during the Renaissance. Marble was in high demand. So the grant that that Philip got, the good Old phil received, gave him a three year period of exclusivity in which he would have the exclusive rights to his invention before other uh folks on in Florence would be allowed to copy what he was doing. So he had some protection there. He could go after anyone who was making use of a barge with a hoist and they didn't. You know go through him first. And this is actually super important because in the early Renaissance folks were more than happy to run with a good idea, especially if it wasn't their own, and run away with that idea. So let's say you're a smarty pants kind of person, right, you are an inventive engineering type, and you come up with an ingenious way to simplify something that is otherwise a difficult task, and your invention is going to make things much much easier and streamlined and be a huge benefit. However, you also happen to know that if you come forward with your idea and you don't have any like significant wealth of your own, people who have more resources than you are just gonna take your idea. They're just gonna say, like, that's brilliant, I'm using it, and then you're left out in the cold. That kind of removes your incentive to do anything with your idea. Right If you're discouraged, if you think, well, yeah, I know how to do this better than anyone else, but I'm not in a position to do it and profit from it, well, then your idea may never materialize in the real world. You may just let it die. But if you are granted at least temporary exclusive rights to your idea, then you can profit from your invention, and that in turn encourages other inventive types to seek out the same sort of protection so that they can actually benefit from their good ideas and not just see them stolen like crazy. In fact, this is the same reason folks came up with the idea of copyright and trademarks. It's kind of like making sure the right person gets the credit, whether the credit is acknowledgement or you know, actual credits as in cold hard cash. We've got more to say about patents, but before we do that, let's take a quick break. The first patent in the United States was for a process for making potash a component and fertilizer. George Washington himself signed the patent, which went to Samuel Hopkins. In eli Whitney received a patent for his invention of the cotton gin, which is a pretty famous example, and by eighteen o two the United States needed a dedicated superintendent to oversee the patent office. In eighteen twenty one, Thomas Jennings received the first patent issued to an African American for his invention of dry scouring kind of a predecessor to dry cleaning. Flash forward a couple of centuries, and now we're well past ten million patents issued in the United States. In fact, we hit the ten million milestone in two thousand and eighteen, and in one we had eleven million patents. That just goes to show that folks are really inventive. Like the the pace of invention increases, and a lot of course happened in the middle there. I mean, you're talking about more than two hundred years of history. Obviously tons of stuff happen. But the patent law has been revised numerous times throughout the history of the United States. But let's go more high level. I mentioned earlier that one of the things you can do with patents is just sit on them, and you can also buy and sell them, like they can be property, like real estate or things like that. So you might be an inventor and the way you make your money as you invent something and then you sell your invention to someone else and that's the end of that. So there are companies that essentially just deal in the business of purchasing patents and then kind of lying in wait like a predator, and the derogatory name for these sorts of companies as a patent troll. Typically, a patentrol company is one that doesn't make anything on its own. It doesn't produce stuff, it doesn't sell anything, but it holds patents to various technologies, and if someone tries to make a product or service that overlaps with one or more of the patents, then the troll pounces and usually there's some legal timidation that goes on. Essentially the troll saying, hey, you can't make this product that's key to your business because we hold the patent on it and we didn't give you permission, so we're gonna sue you. And the goal is just to get as big a settlement out of the target as you possibly can, and that's how the patentrol makes money. Meanwhile, if no one actually tried to make something that overlapped with the patentrols patents, well then nothing related to those patents ever really comes into being, because again, the patentrol isn't going to do anything about it. So you have these ideas that are effectively locked away, and it's antithetical to the spirit of the patent system in the first place. Patentrols are not always successful in their efforts. There's the famous example of Personal Audio LLC, which claimed a patent it owned, specifically Patent number eight million, five hundred four, which was called a System for Disseminating media content covered the technology of podcasting, and this company then began suing podcast producers, including Adam Corolla, uh and that turned into a massive legal battle, and ultimately Personal Audio LLC dropped the case. And Outsider suspected that the company realized that it was facing an uphill legal battle and that it could potentially lose that patent, like the patents teeth could be removed, and that the court was likely to find that the patent was overbroad and vague. But Personal Audio LLC said the reason they dropped the case was that podcasters weren't generating a significant amount of revenue from infringing their patents, which I mean, I guess that just means the company said, we don't expect to actually make any money off this lawsuit, and that's all that really matters, so we're done. But Corolla actually countersued and sought the Patent Office to invalidate the patent in question. Personal Audio LLC ultimately settled with Corolla out of court for an undisclosed amount, but the Electronic Frontier Foundation or e f F, filed a challenge to that patent, and the U S Patent Office ultimately revoked five provisions within the patent, essentially neutering it. And Patent Audio LLC appealed all the way to the Supreme Court, but the Supreme Court rejected the petition for review and the case ended with the podcasting patent effectively neutralized. Part of the arguments in that case was that the patent wasn't just overly broad, it was describing something that had already existed before the patent was granted. And that's one of the big things about patents. If someone can prove that person did not actually invent something, but that the supposed invention already existed, well, that's called prior art. It means the invention is already known and that the patent office shouldn't issue a patent in that case. We've seen that pop up in a defense time and again, um sometimes in an attack as well, and sometimes pop culture serves as an example of prior art, such as the tablet like computers that are seen in two thousand one A Space Odyssey, the Stanley Kubrick film of the Arthur C. Clark story that served as an example of the tablet form factor in a patent dispute that was between Sam Sung and Apple, and companies often use patents as both kind of a shield and a sword at the same time. You'll frequently hear stories of companies suing one another for patent infringement, and it's not unusual to hear company A sues Company B for infringing on like ten patents, and then company B SU's Company A for infringing on twelve other patents and so on. That happened a lot between Apple and Samsung, as well as Apple and tons of other companies. And sometimes these are maneuvers that play apart in tough negotiations between companies as they try to land a favorable licensing deal. That's what we've seen recently between Apple and Ericsson. Patent licenses are key to business these days. It's pretty much impossible to do business in the tech sector without relying on someone else's patented technology in some way, so typically businesses secure licenses with those patent holders to avoid any litigious entanglements down the line, and there's usually a lot of criss crossing agreements between these large companies, with them becoming dependent upon one another, though things can get ugly when license agreements come too close to expiring, which we've seen recently. There are tons of other interesting stories about patents, including some of history's greatest feuds. Maybe I'll cover those in a future text stuff tidbit. Uh. The one that leaps to mind is between Nikola, Tesla and Marconi, but I'll have to wait and hold off on that. Maybe I'll do a text stuff tidbit to really lay out that story. It's a pretty infuriating one, but a really interesting one as well. And uh, yeah, that's our tech stuff tidbits about patents. You get a little bit of information about that, and again I can probably do another follow up to talk about it more. But if you have suggestions for topics I should cover on tech stuff, reach out to me on Twitter. The handle for the show is text Stuff h s W and I'll talk to you again, really sick. Text Stuff is an I Heart Radio production. For more podcasts from my Heart Radio, visit the i Heart Radio app Apple Podcasts wherever you listen to your favorite shows,